ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
27 September 2021 (*)
(Competition – Concentrations – Italian market for mobile telecommunications services – Action for annulment brought by a competitor – Intervention – No interest in the result of a case)
In Case T‑692/20,
Iliad Italia SpA, established in Milan (Italy), represented by D. Fosselard and D. Waelbroeck, lawyers,
applicant,
v
European Commission, represented by G. Conte, C. Sjödin, and J. Szczodrowski, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking annulment of Commission Decision C(2020) 1573 final of 6 March 2020 declaring compatible with the internal market and the EEA Agreement the concentration involving the merger of the passive infrastructure management businesses in Italy of Vodafone Europe BV and Telecom Italia SpA into a newly created joint venture (OJ 2020 C 29, p. 13).
makes the following
Order
Background to the dispute
1 On 17 January 2020, the European Commission (‘the Commission’) received notification of a proposed concentration, pursuant to Article 4(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), by which Vodafone Europe BV (‘Vodafone’) and Telecom Italia SpA (‘TIM’) intended to combine their passive infrastructure businesses in Italy – allowing, inter alia, to host transmission equipment for telecommunications operators – into a newly created joint venture, called Infrastrutture Wireless Italiane SpA (‘INWIT’).
2 On 6 March 2020, the Commission adopted, pursuant to Article 8(2) of Regulation No 139/2004, Decision C(2020) 1573 final declaring the notified concentration compatible with the internal market and the EEA Agreement (Case COMP/M.9674 – Vodafone ITALIA/TIM/INWIT JV) (‘the contested decision’).
3 In the contested decision, the Commission assessed, in the first place, the likely effects of the notified transaction.
4 In that regard, first, the Commission took the view that the notified transaction raised serious doubts as to its compatibility with the internal market on account of non-coordinated vertical effects on the markets for the supply of retail and wholesale mobile telecommunications services, given that, once the concentration would have been implemented, the parties to the concentration would have the ability, in Italy, to foreclose access to their passive infrastructures to Iliad Italia or any other provider of retail and wholesale mobile telecommunications services which would have the same needs in terms of access to the passive infrastructures.
5 Second, the Commission did not rule out the possibility that the notified transaction might raise serious doubts as to its compatibility with the internal market on account of non-coordinated vertical effects to the detriment of suppliers of retail and wholesale fixed wireless telecommunications (using ‘fixed-wireless access (FWA) technology’) (‘FWA suppliers’), given that, once the concentration would have been implemented, the parties to the concentration would potentially be able , in Italy, to foreclose access to their macro-cell antennas to retail and wholesale FWA suppliers.
6 Third, the Commission did not rule out the possibility that the notified transaction might raise serious doubts as to its compatibility with the internal market on account of non-coordinated horizontal effects relating to the provision of hosting services on passive infrastructures – in particular on macro-cell antennas – to mobile network operators, FWA suppliers and customers other than television and radio broadcasters.
7 In the second place, the Commission found that the commitments entered into by Vodafone and TIM were capable of rendering the notified transaction compatible with the internal market and the EEA Agreement. It concluded that the notified transaction, as modified following the commitments offered by the parties to the concentration, would not significantly impede effective competition on the markets on which competition concerns had been identified.
8 Thus, the contested decision states that the notified concentration is compatible with the internal market and the EEA Agreement pursuant to Article 6(1)(b), read in conjunction with Article 6(2) of Regulation No 139/2004 and Article 57 of the EEA Agreement, provided that the conditions and obligations referred to in the commitments annexed to the contested decision are complied with by the parties to the concentration.
Procedure
9 By application lodged at the Court Registry on 18 November 2020, the applicant, Iliad Italia SpA (‘Iliad Italia’), brought an action seeking annulment of the contested decision.
10 The Commission contends that the action should be dismissed and the applicant should be ordered to pay the costs.
11 By document lodged at the Court Registry on 11 March 2021, the company Fastweb SpA (‘Fastweb’) applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant.
12 That application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
13 By document lodged at the Court Registry on 9 July 2021, the Commission raised objections to the application to intervene.
14 By document lodged at the Court Registry on 9 July 2021, the applicant informed the Court that it had no observations to make on that application to intervene.
15 The applicant requested, under Article 144(5) and (7) of the Rules of Procedure, that certain confidential information in the case file be omitted from the communication to Fastweb and produced, for the purposes of that communication, a non-confidential version of the procedural documents in question.
Law
16 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of a case submitted to the General Court, to the exclusion of cases between Member States, between EU institutions or between Member States, on the one hand, and institutions of the European Union, on the other, is entitled to intervene in that case.
17 The concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment (see order of the President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 6 and the case-law cited). In that regard, it should be ascertained in particular whether the intervener is directly affected by the contested measure and whether his or her interest in the result of the case is established (see, to that effect, Order of the President of the Court of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Sun Sang Kong Yuen Shoes Factory, C‑461/07 P(I), paragraph 5).
18 It is necessary to apply a rigorous distinction between prospective interveners establishing a direct interest in the ruling on the specific act whose annulment is sought and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that specifically referred to in that act (order of 7 May 2020, Canon v Commission, T‑609/19, not published, EU:T:2020:203, paragraph 11 and the case-law cited). Were that not so, any person affected in an unspecified manner by a dispute could establish an interest in the result of the case. Such a situation would not be consistent with the requirements of economy of procedure (see order of 8 September 2016, Buonotourist v Commission, T‑185/15, not published, EU:T:2016:539, paragraph 13 and the case-law cited).
19 In principle, an interest in the result of the case can be considered to be sufficiently direct only if that result is capable of altering the legal position of the applicant for leave to intervene (see order of the President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7 and the case-law cited).
20 Furthermore, in accordance with Article 143(2)(f) of the Rules of Procedure, it is for the applicant for leave to intervene to adduce proof of the facts alleged in support of its application. Thus, a future and hypothetical event is not capable of demonstrating an existing and established interest in the result of the case (see order of 26 April 2018, Valencia Club de Fútbol v Commission, T‑732/16, EU:2018:237, paragraphs 17 and 22 and the case-law cited).
21 In this case, the applicant for leave to intervene submits that it has a direct and existing interest in intervening in support of the action brought by the applicant.
22 It states, first, that as a fixed telecommunications operator – via its fibre optic and FWA networks – and a mobile telecommunications operator in Italy, it would be led to subscribe for hospitability services of transmission equipment on macro-cell antennas, such as those offered by INWIT. The anticompetitive effects which would arise from the concentration and the commitments offered to address those effects thus have a considerable impact on its businesses. The applicant adds, second, that the four pleas raised by Iliad Italia in its action for annulment concern the ability of the commitments entered into by Vodafone and TIM to address the competition concerns raised by the concentration’s transaction. The annulment of the contested decision on the basis of those pleas would therefore have a significant impact on the applicant’s legal position.
23 The Commission disputes the arguments of the applicant for leave to intervene. According to the Commission, that applicant has not established the existence of any impact of the contested decision on its businesses.
24 In the first place, it should be borne in mind that the contested decision is not addressed to Fastweb.
25 In the second place, it should be noted that, in its application to intervene, Fastweb merely states that, as an FWA and mobile telecommunications services supplier, it needs to subscribe for hospitability services with an operator such as INWIT, without specifying whether it has already subscribed for those services with an operator, such as TIM, Vodafone or INWIT, or whether it intends to subscribe for them with INWIT.
26 The evidence referred to in the contested decision and the Commission’s observations suggest, on the contrary, that Fastweb uses, for its FWA and mobile networks, alternatives to INWIT’s passive infrastructures.
27 According to the Commission, first, Fastweb has had a partnership since June 2019, with a telecommunications operator active in Italy, Wind Tre, allowing it to use the existing mobile network roaming services of that operator (4G or older technologies) and to jointly roll out a 5G network from 2020 onwards (see paragraph 57 of the contested decision).
28 As the Commission noted in the contested decision, it is unlikely that Fastweb will purchase hospitability services from INWIT since its mobile network is managed by Wind Tre and it would rely, for the deployment of its 5G mobile network, on a partnership (see paragraph 226 of the contested decision). The non-coordinated horizontal effects and the non-coordinated vertical effects which would arise from the notified transaction could therefore affect Fastweb only if its partnership with Wind Tre is, or is likely, to be unsuccessful (see paragraphs 280 and 282 and footnote 164 of the contested decision).
29 However, Fastweb does not submit, at any point, in its application to intervene that its partnership with Wind Tre is, or is likely, to be unsuccessful.
30 Second, according to the Commission, without being contradicted by Fastweb, the latter has, since December 2019, been in cooperation with an FWA supplier in Italy, Linkem, for the reciprocal provision of FWA network slices (see paragraph 59 of the contested decision). The Commission stated, inter alia, in paragraph 306(a) of the contested decision, that it is difficult to know to what extent Fastweb, as a FWA supplier, might require hospitability services from INWIT. It adds, however, that that possibility cannot be ruled out, having regard to Fastweb’s obligation to give access to Linkem to certain slices of its network.
31 However, Fastweb does not state at any point, in its application to intervene, that its cooperation with Linkem would mean that it requires access to INWIT’s passive infrastructures. Nor does it claim that that cooperation is, or is likely, to be unsuccessful or insufficient, and that it therefore has a current or even future need to access INWIT’s passive infrastructures in order to develop its FWA network.
32 It follows from the foregoing that Fastweb does not adduce any evidence to suggest that it has a current or future need to access INWIT’s passive infrastructures to develop its FWA and mobile networks.
33 Accordingly, the applicant for leave to intervene does not provide any evidence that it must, or will, in fact, have to subscribe for hospitability services for its transmission equipment from INWIT and thus infringes the principle referred to in paragraph 20 of this judgment.
34 In any event, if Fastweb’s observations were to be understood as meaning that the possible failure of its partnership with Wind Tre or its cooperation with Linkem would mean that it would require INWIT’s hospitability services, it should be borne in mind that such an event is future and hypothetical and is not, as stated in paragraph 20 of this judgment, such as to demonstrate an existing and established interest in the result of the case.
35 In the third place, it is recalled that, in accordance with the second subparagraph of Article 8(2) of Regulation No 139/2004, the Commission has attached to the contested decision conditions and obligations which are intended to ensure that Vodafone and TIM comply with the commitments which they have entered as regards that institution with a view to rendering the concentration compatible with the internal market.
36 The applicant has not shown that those conditions and obligations imposed on the parties to the concentration produce different effects on its situation from those arising from its partnership with Wind Tre and from its cooperation with Linkem or indeed additional effects in relation to those resulting from that partnership and that cooperation. Consequently, the applicant has also failed to show that the annulment of the contested decision would alter its legal position.
37 Accordingly, the applicant for leave to intervene has not shown that the annulment of the contested decision would have legal effects directly on itself, the partnership which it concluded with Wind Tre or its cooperation with Linkem.
38 Overall, the interest put forward by Fastweb is indirect and results, in particular, from the potential similarity of its position with that of the applicant in the event that the partnership with Wind Tre would be unsuccessful.
39 Accordingly, Fastweb does not adduce anything that asserts that the result of the case is such as to its legal position.
40 The application by which Fastweb applied to intervene in the present proceedings, in support of the form of order sought by the applicant, is therefore rejected.
41 In those circumstances, there is no longer any need to rule on the applications for confidential treatment of certain information in the file as regards Fastweb (see paragraph 15 of this judgment).
Costs
42 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings as regards Fastweb, it is appropriate to rule on the costs relating to its application.
43 Under Article 134(1) of the Rules of Procedure, read in conjunction with Article 144(6) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the main parties have not applied for costs relating to the present application to intervene, the main parties and the intervener must be ordered to bear their own costs.
On those grounds,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application to intervene by Fastweb SpA. is rejected.
2. Iliad Italia SpA., the European Commission and Fastweb SpA. shall bear their own costs relating to the application to intervene.
Luxembourg, 27 September 2021.